"If any party, after giving notice to the adverse party, as aforesaid, neglects or refuses to take a deposition, such adverse party may recover twenty-five cents a mile for actual travel of himself or his attorney to attend the same, by action on the case, unless seasonably notified in writing, signed by the party giving such notice, that such deposition will not be taken." G. L., c. 229, s. 10.
The defendants claim that upon a fair interpretation of this statute, the plaintiffs can only recover their necessary expenses, not exceeding twenty-five cents a mile, for actual travel in attending at the place notified for the caption of the deposition. *Page 548
The interpretation of the statute is the ascertainment of the legislative intention; and that intention is found by the natural weight of competent evidence. Evidence of an intention that the suffering party should recover the whole sum indicated in the statute, is found in the fact that language is used similar to that frequently used in other statutes for the recovery of a definite sum as liquidated damages. The money expended by one town in the support of a poor person chargeable to another town, "may be recovered" of the town chargeable (G. L., c. 82, s. 10). The person to whom damages are awarded for land taken for a highway "may recover the same with interest" (c. 70; s. 7). Any person compelled to pay damages for the escape of a prisoner "may recover the same" c. (c. 220, s. 7). "All penalties and forfeitures may be recovered by action of debt," c. (c. 266, s. 1). These are instances of the use of the permissive phrase "may recover," in statutes where a sum named, or one to be found by computation from given data, is always the measure of the recovery.
The act of Dec. 31, 1828, s. 7 (N.H. Laws, 1830, p. 507), provided for the recovery of "double the fees which are allowed by law to witnesses for their travel and attendance at court in the trial of civil causes," and the language giving the remedy is, "shall be entitled to have and recover in an action of the case." Under this statute it does not appear to have been questioned that the recovery, when had, should be the double witness fees named. Wilson v. Knox, 12 N.H. 347; Gould v. Kelley, 16 N.H. 551. By the Revised Statutes, c. 188, s. 22, the adverse party, to whom notice was given, was entitled to recover of the party neglecting to take the deposition twenty-five cents a mile for actual travel of himself or attorney to attend the caption. Under that law the decisions have been that the aggrieved party was entitled to recover according to the late fixed in the statute. Powers v. Hale, 25 N.H. 145, 154; Voght v. Ticknor,47 N.H. 543. Since the adoption of the Revised Statutes, the only change made in the law was in the enactment of the General Statutes of 1867 (G. S., c. 210, s. 10), where the words "may recover," now in the statute, were substituted for the words "shall be entitled to recover." In making this change, the commissioners of revision have not indicated, by sign or abbreviation upon the margin of their report, that any change, verbal, material, or sensible, was intended. The obvious and natural meaning of the two phrases, as applied to the subject of the statute, is the same. The words of the one are abbreviated in the other, but the sense is not changed. "Shall be entitled to recover" is, that the party, under the circumstances named, shall have the right, privilege, power, to maintain an action, and in the event of success, to recover the amount named in the statute. So the words "may recover," as applied to the object of the proceeding, can only be taken as giving the right, entitling the party, if he chooses, to bring and prosecute the action, and, if he proves the necessary conditions, *Page 549 recover twenty-five cents for every mile of actual travel as liquidated damages[.] Had the legislature intended that the party complaining should be limited in his recovery to actual expenses, or what might be found equitably due, or to some less sum than that named in the statute, the intention would in some way have been expressed, as has been done in the statute providing for the recovery of any penalty or forfeiture in a recognizance in a civil action, and in any obligation or contract under seal, where judgment shall be rendered for the amount found equitably due.
The defendants' claim that their accidental omission to take the deposition, with no fault on their part, makes a case not within the meaning of the phrase "neglects and refuses," as used in the statute, and that there can be no recovery beyond the actual damages, or what is equitably due. In Wilson v. Knox, supra, decided in 1841, where the same words were in the statute, it is said, — "The statute was designed to give an adequate and sufficient renumeration for expenses incurred in case of an attendance agreeably to notice, on a proposed caption of depositions, where no depositions were taken." And in Gould v. Kelley, supra, p. 559, the "negligence and refusal" of the party failing to proceed with the caption is spoken of as his "default;" and in Voght v. Ticknor, in 1867, the full sum of twenty-five cents a mile was decided to be the measure of damages, although the defendant was without fault, and used due diligence in the attempt to take the deposition. A uniform construction has been given to the statute in these decisions, and no distinction has been made between cases of innocent omission and wilful neglect. The statute fixes the amount of compensation which the party, who is notified and attends at the time and place indicated, is entitled to recover of the party giving the notice and neglecting to take the deposition.
In Voght v. Ticknor no reasons are given for the decision, and it is understood that the judge whose name is affixed to the opinion did not agree with the majority of the court in the result announced.
Were this the first time the question had been before the court, it might be doubtful whether the recovery should not be limited to the amount equitably due; but the question of statutory construction has been settled by repeated decisions.
The plaintiff, having attended agreeably to the notice, is entitled to recover twenty-five cents a mile for the distance each way travelled by his attorney making the journey for the purpose.
Case discharged.
BLODGETT, J., dissented: CARPENTER and BINGHAM, JJ., did not sit: the others concurred. *Page 550